Abercrombie

This is an appeal by the defendant from an order granting plaintiff’s motion for a new trial. The action arose out of a collision between an automobile operated by the deceased husband of plaintiff and a truck operated by defendant.

The plaintiff brought the action as administratrix of the estate of her deceased husband on behalf of herself and their three minor children. The answer of defendant denied the allegations of negligence appearing in the complaint, and charged decedent with contributory negligence; he also filed a cross-complaint charging deceased with negligence. At the conclusion of the trial a verdict was rendered by the jury in favor of the defendant on the complaint but against him on his cross-complaint. Thereafter plaintiff moved for a new trial, and after a hearing thereon the court made its order granting the motion upon the grounds of, (1) insufficiency of the evidence to sustain the verdict, and (2) that plaintiff was prevented from having a fair trial because of the failure of one juror to disclose that he was a client of one of defendant’s counsel, and therefore subject to challenge for cause under section 602 of the Code of Civil Procedure.

The accident…